312 Malayan Law Journal [2022] 11 MLJ

A
Masniah bt Abidin & Anor v Safirah Jaan bt Jaafar

HIGH COURT (KOTA KINABALU) — CIVIL APPEAL NO BKI-11B-1/1

B
OF 2019
AMELATI PARNELL JC
29 SEPTEMBER 2021

Evidence — Hearsay — Inadmissible — Mother of four-year-old girl sued C

kindergarten/childcare centre for negligence alleging her child told her she was
sexually molested there by boy of same age — Whether without other independent
corroborative evidence mother’s allegation was hearsay and inadmissible in
evidence — Whether CCTV recordings of inside of centre did not show alleged
molest took place — Whether CCTV recordings coupled with failure to call child D
to testify resulted in mother’s molest claim remaining unproven on balance of
probabilities — Whether adverse inference under s 114(g) Evidence Act 1950 had
to be invoked against mother for not calling child to testify — Whether centre’s
defence denying alleged molest ever took place was bolstered by plaintiff counsel’s
failure to cross-examine defence witnesses or rebut the CCTV evidence E

The first appellant (‘A1’) was the owner of the second appellant (‘A2’)
kindergarten/childcare centre to which the respondent (‘R’) had been sending
her four-year-old daughter (‘X’) for about a month. On returning home from
A2 one day, X allegedly informed R that a four-year-old boy (‘Y’) at the F
kindergarten had opened her pants and touched her private parts (‘the
incident’). When R enquired with A1 and another teacher at A2 about the
incident, they denied any knowledge about it and said the incident could not
have happened as all the toddlers at A2 were always closely monitored. R’s
attempt to view A2’s CCTV recordings of the day when the incident allegedly G
took place did not succeed because the equipment’s mouse wire was broken.
When R and her husband returned the next day to view the recordings they
found that one of the eight channels was blank indicating a loss of video,
unhappy with the way things had turned out, R stopped sending X to A2 and
thereafter sued the appellants in the magistrate’s court for negligence and H
claimed damages amounting to RM100,000. R pleaded that the appellants had
breached their duty of care to ensure that X was always safe and secure at all
times when she was under their care and had allowed the incident to happen
causing the family to suffer mental anguish and anxiety. The appellants wholly
denied R’s claim. Following a trial, the magistrate allowed R’s claim and I
awarded her RM30,000 in general damages, RM1,500 in special damages and
costs. In the instant appeal against the decision, the appellants argued that the
magistrate was wrong in finding that the incident actually took place when
there was no evidence, especially CCTV evidence, to support that finding. The
 Masniah bt Abidin & Anor v Safirah Jaan bt Jaafar
[2022] 11 MLJ (Amelati Parnell JC) 313

A appellants submitted that there was no basis at all for the magistrate to find that
they had been negligent towards R or X and that they had to pay damages. The
appellants contended that the magistrate should have invoked adverse
inference under s 114(g) of the Evidence Act 1950 against R for not calling X
to testify at the trial which had not only resulted in R failing to prove her case
B on balance of probabilities but had supported the appellants’ defence that the
incident never took place.

Held, allowing the appeal and setting aside the magistrate’s decision:
C (1) R’s evidence that X was molested while she was in A2 was nothing more
than hearsay as it sought to prove by that evidence, the truth of the
matter. In the absence of other plausible affirmative evidence, R’s
evidence in this respect was inadmissible (see para 38).

D
(2) The magistrate misdirected herself in holding that, given X’s tender years,
she could not have made up the story that she was molested by Y and that
it would not be good for X mentally and psychologically to recount the
incident by testifying at the trial. There was no provision of law or case
authority to support the magistrate’s view that the law should be flexible
E so as not to require a child of tender years to be called to testify if the
circumstances warranted it. The evidence put forth by PW1 and PW2 for
not calling X to testify did not fall under any exception set out in s 32 of
the Evidence Act 1950. Whether or not the alleged molest took place was
a question of fact that required evidence of facts to determine, and not
F evidence of opinions (see paras 40–42 & 44).
(3) Adverse inference under s 114(g) of the Evidence Act 1950 ought to be
invoked against R on her failure to call X to testify at the trial. The burden
was on R to prove that the alleged molest actually took place; therefore, it
was incumbent upon her to have called X as a witness at the trial to prove
G the allegation. Although PW5 said that it was inadvisable to make X
testify because the child had already passed the said incident
therapeutically, it was for the court to decide whether or not the child was
competent to testify. The Evidence of Child Witness Act 2007 (Act 676)
provided the manner in which a child could safely and comfortably give
H evidence in court (see paras 47, 49, 51 & 53).
(4) R’s failure to cross-examine A1 on her testimony and the failure to rebut
the CCTV evidence meant that A1’s testimony must be deemed to be
accepted as the truth in its entirety and that the appellants had proven
I their defence that the alleged molest incident did not take place (see
paras 57–58).
(5) The magistrate misdirected herself when she made a finding of fact that
there was a possibility the said incident could have taken place at another
location in A2 and might have been recorded on another channel in the
314 Malayan Law Journal [2022] 11 MLJ

CCTV recording and not on Channels 4 and 5. This finding went against A
R’s pleading that the incident occurred in front of the TV viewing area in
A2. The CCTV recordings of the TV viewing area on Channels 4 and 5
did not show that such an incident took place. This was admitted by R’s
counsel who had viewed the recordings and decided there was no
necessity to tender them as evidence in court. This admission indicated B
that the alleged molest did not occur. The magistrate ought to have
considered this admission because it was based on physical evidence (see
paras 61–65).

[Bahasa Malaysia summary C

Perayu pertama (‘A1’) adalah pemilik tadika/pusat asuhan kanak-kanak perayu
kedua (‘A2’) di mana responden (‘R’) telah menghantar anak perempuannya
yang berumur empat tahun (‘X’) selama lebih kurang sebulan. Sekembalinya
ke rumah dari A2 pada suatu hari, X didakwa memaklumkan R bahawa
seorang budak lelaki berusia empat tahun (‘Y’) di tadika itu telah membuka D
seluarnya dan menyentuh bahagian sulitnya (‘kejadian tersebut’). Apabila R
bertanya dengan A1 dan seorang lagi guru di A2 mengenai kejadian tersebut,
mereka menafikan sebarang pengetahuan mengenainya dan berkata kejadian
itu tidak mungkin berlaku kerana semua kanak-kanak di A2 sentiasa dipantau
dengan teliti. Percubaan R untuk melihat rakaman CCTV A2 pada hari E
kejadian didakwa berlaku tidak berjaya kerana wayar tetikus peralatan telah
putus. Apabila R dan suaminya kembali keesokan harinya untuk melihat
rakaman, mereka mendapati bahawa salah satu daripada lapan saluran kosong
menunjukkan kehilangan video, tidak berpuas hati dengan keadaan yang
berlaku, R berhenti menghantar X ke A2 dan selepas itu menyaman perayu di F
mahkamah majistret atas kecuaian dan menuntut ganti rugi berjumlah
RM100,000. R memplidkan bahawa perayu telah melanggar kewajipan
penjagaan mereka untuk memastikan bahawa X sentiasa selamat dan terjamin
pada setiap masa semasa beliau berada di bawah jagaan mereka dan telah
membenarkan kejadian itu berlaku menyebabkan keluarga mengalami G
gangguan mental dan kebimbangan. Perayu-perayu menafikan sepenuhnya
tuntutan R. Selepas perbicaraan, majistret membenarkan tuntutan R dan
menganugerahkan RM30,000 sebagai ganti rugi am, RM1,500 sebagai ganti
rugi khas dan kos. Dalam rayuan semasa terhadap keputusan tersebut,
perayu-perayu berhujah bahawa majistret terkhilaf apabila mendapati kejadian H
tersebut sebenarnya berlaku apabila tiada bukti, terutamanya bukti CCTV,
untuk menyokong dapatan tersebut. Perayu-perayu berhujah bahawa tiada
asas sama sekali untuk majistret mendapati mereka cuai terhadap R atau X dan
mereka perlu membayar ganti rugi. Perayu-perayu berhujah bahawa majistret
sepatutnya menggunakan anggapan bertentangan di bawah s 114(g) Akta I
Keterangan 1950 terhadap R kerana tidak memanggil X untuk memberi
keterangan pada perbicaraan yang bukan sahaja menyebabkan R gagal
membuktikan kesnya atas imbangan kebarangkalian tetapi telah menyokong
pembelaan perayu bahawa kejadian itu tidak pernah berlaku.
 Masniah bt Abidin & Anor v Safirah Jaan bt Jaafar
[2022] 11 MLJ (Amelati Parnell JC) 315

A Diputuskan, membenarkan rayuan dan mengetepikan keputusan majistret:

(1) Keterangan R bahawa X telah dicabul semasa beliau berada di A2 tidak
lebih daripada cakap salah kerana ia cuba membuktikan dengan
keterangan tersebut, kebenaran perkara tersebut. Dengan ketiadaan
B bukti afirmatif lain yang munasabah, keterangan R dalam hal ini tidak
boleh diterima (lihat perenggan 38).
(2) Majistret tersalah arah dengan menyatakan bahawa, memandangkan usia
muda X, beliau tidak boleh mengada-adakan cerita bahawa beliau telah
dicabul oleh Y dan tidak baik untuk X dari segi mental dan psikologi
C untuk menceritakan kejadian tersebut dengan memberi keterangan di
mahkamah perbicaraan. Tidak ada peruntukan undang-undang atau
otoriti kes untuk menyokong pandangan majistret bahawa
undang-undang harus fleksibel supaya tidak memerlukan kanak-kanak
D
berumur muda dipanggil untuk memberi keterangan jika keadaan
memerlukannya. Keterangan yang dikemukakan oleh PW1 dan PW2
untuk tidak memanggil X untuk memberi keterangan tidak termasuk di
bawah sebarang pengecualian yang dinyatakan dalam s 32 Akta
Keterangan 1950. Sama ada dakwaan pencabulan tersebut berlaku atau
E tidak adalah persoalan fakta yang memerlukan keterangan fakta untuk
menentukan, dan bukan keterangan pendapat (lihat perenggan 40–42 &
44).
(3) Anggapan bertentangan di bawah s 114(g) Akta Keterangan 1950
sepatutnya digunakan terhadap R atas kegagalannya memanggil X untuk
F memberi keterangan pada perbicaraan. Beban berada pada R untuk
membuktikan bahawa dakwaan cabul tersebut benar-benar berlaku; oleh
itu, adalah menjadi tanggungjawabnya untuk memanggil X sebagai saksi
dalam perbicaraan untuk membuktikan dakwaan tersebut. Walaupun
PW5 berkata ia adalah tidak digalakkan untuk membuat X memberi
G keterangan kerana kanak-kanak tersebut telah pun melepasi kejadian
tersebut secara terapeutik, mahkamahlah yang memutuskan sama ada
kanak-kanak tersebut cekap atau tidak untuk memberi keterangan. Akta
Keterangan Saksi Kanak-Kanak 2007 (Akta 676) memperuntukkan cara
seseorang kanak-kanak boleh memberikan keterangan dengan selamat
H dan selesa di mahkamah (lihat perenggan 47, 49, 51 & 53).
(4) Kegagalan R untuk menyoal balas A1 ke atas keterangannya dan
kegagalan untuk membidas keterangan CCTV bermakna keterangan A1
mesti disifatkan sebagai diterima sebagai kebenaran keseluruhannya dan
I perayu-perayu telah membuktikan pembelaan mereka bahawa dakwaan
insiden cabul tersebut tidak berlaku (lihat perenggan 57–58).
(5) Majistret tersalah arah apabila beliau membuat dapatan fakta bahawa
terdapat kemungkinan kejadian tersebut boleh berlaku di lokasi lain di
A2 dan mungkin telah dirakam di saluran lain dalam rakaman CCTV
316 Malayan Law Journal [2022] 11 MLJ

dan bukan di Saluran 4 dan 5. Dapatan ini bertentangan dengan pliding A

R bahawa kejadian tersebut berlaku di hadapan kawasan tontonan TV di
A2. Rakaman CCTV kawasan tontonan TV di Saluran 4 dan 5 tidak
menunjukkan kejadian seperti itu berlaku. Ini diakui oleh peguam R
yang telah melihat rakaman tersebut dan memutuskan tidak ada
keperluan untuk mengemukakannya sebagai bukti di mahkamah. B
Pengakuan ini menunjukkan bahawa dakwaan cabul tidak berlaku.
Majistret sepatutnya mempertimbangkan pengakuan ini kerana ia
berdasarkan bukti fizikal (lihat perenggan 61–65).]

Cases referred to C
Chan Sau Chuan v Choi Kong Chaw & Yap Yun Chan [1990] MLJU 9; [1991]
2 CLJ 394, HC (distd)
Government of Malaysia & Ors v Jumat bin Mahmud & Anor [1977] 2 MLJ
103, FC (folld) D
Hassan bin Hj Ali Basari v PP [2019] 1 MLJ 390; [2018] 4 CLJ 561; [2018]
1 LNS 132, CA (refd)
Juahir bin Sadikon v Perbadanan Kemajuan Ekonomi Negeri Johor [1996]
3 MLJ 627, CA (folld)
Leong Hong Khie v PP [1986] 2 MLJ 206; [1984] 1 LNS 172; [1984] 1 E
MLRA 599, FC (refd)
Ng Siew Lan v John Lee Tsun Vui & Anor [2017] 2 MLJ 167, FC (refd)
Saiman bin Umar v Lembaga Pertubuhan Peladang and another appeal [2015]
9 CLJ 153, FC (refd)
Selvaduray v Chinniah [1939] 1 MLJ 253 (refd) F
Silvadurai a/l Kunnary & Anor v Pengetua Sekolah Rendah Jenis Kebangsaan
Cina Chung Hwa Asahan, Muar, Johor & Ors [1996] MLJU 331, HC (folld)
Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395; [1996] 4 CLJ
545, CA (folld)
Tempil Perkakas Sdn Bhd v Foo Sex Hong (t/a Agrodrive Engineering) [1996] G
5 MLJ 542; [1996] 1 LNS 99, HC (refd)
Yew Wan Leong v Lai Kok Chye [1990] 2 MLJ 152; [1990] 1 CLJ 1113; [1990]
1 CLJ Rep 330, SC (refd)

Legislation referred to H
Evidence Act 1950 ss 32, 45, 101, 102, 114(g), 118
Evidence of Child Witness Act 2007 s 3
Hamid bin Ismail (Hamid & Co) for the appellant.
Farazwin bt Haxdy (Farazwin Haxdy & Assoc) for the respondent. I
 Masniah bt Abidin & Anor v Safirah Jaan bt Jaafar
[2022] 11 MLJ (Amelati Parnell JC) 317

A Amelati Parnell JC:

INTRODUCTION

[1] This is the first and second appellants’ appeal against the decision of the
B learned magistrate given on 16 January 2019 in allowing the respondent’s claim
and awarded general damages in the sum of RM30,000, special damages in the
sum of RM1,500, suing cost in the sum of RM1,375 and advocacy cost in the
sum of RM5,450.
C
[2] For the purpose of this appeal, the first and second appellants will be
referred to as the first and second defendants, whereas the respondent will be
referred as the plaintiff.

THE PLAINTIFFS’ PLEADED CASE

D
[3] The plaintiff is the biological mother and legal guardian of one
four-year-old child (at the time of the incident) named ‘X’ (‘the said child’).

E [4] The first defendant is and was at all material time the owner and
principal of the second defendant, a kindergarten/daycare known as Tadika
Khalifah Perdana @ Little Caliphs operating at Lot 129, Lorong 3D, Taman
Putera Perdana, 88450 Telipok, Sabah.

F [5] The nature of business of second defendant is providing daycare services

to toddlers and at the same time operating as taska and/or kindergarten to
young children aged five years and below.

G
[6] On 16 March 2016, upon returning from the second defendant, the
said child had informed the plaintiff that a male child named ‘Y’ (a
four-year-old boy) who also attended the second defendant, had sexually
molested the said child by opening her pants and touching her private parts
(‘the said incident’).
H (The details of both children are substituted with ‘X’ and ‘Y’ respectively in
order to protect their identity and are as stated in the bundle of pleadings and
notes of proceedings).

I
[7] On the same day, the plaintiff contacted one Feka, a teacher who works
at the second defendant and the first defendant to enquire more on the said
incident and not one of them have had knowledge on the said incident and
further refuted the allegations and concluded that such incident could have
318 Malayan Law Journal [2022] 11 MLJ

never happened as all children under the care of the second defendant are A
supposed to be monitored at all times and are divided accordingly to their
gender and age.

[8] On 17 March 2016, a day after the said incident had occurred, the
plaintiff together with her husband brought the said child to second defendant B
to make further enquiries and obtain clarifications from the first defendant and
one Feka.

[9] The plaintiff had also sought permission from the teachers who worked
with second defendant to view CCTV recordings of the second defendant C
specifically for the recordings on 16 March 2016 (‘the said CCTV recordings’),
the day of the said incident, but was rejected and was told that only first
defendant is privy to the access to any CCTV recordings of the second
defendant.
D
[10] The plaintiff was granted permission to view the said CCTV recordings
upon the arrival of the first defendant to second defendant but to the plaintiff ’s
disappointment, the said CCTV recordings was unable for viewing due to the
broken mouse at that particular of time and was further told by the first
E
defendant that the said CCTV recordings can only be viewed within few days
as the first defendant needed to get another mouse.

[11] The plaintiff was unhappy with the solution offered by the first
defendant and offered to use her mouse instead when they returned back to F
second defendant at about 5pm on the same day. Notwithstanding the replaced
new mouse by the plaintiff, the plaintiff was still unable to view the said CCTV
recordings due to time constraints.

[12] The plaintiff and her husband confirmed that there were eight channels G
on the screen and only one blank channel which is Channel 9 that was blank
which was located at the last column of the CCTV screen during the first time
they entered the CCTV recording room that day.

[13] On 18 March 2016, the plaintiff and her husband returned to second H
defendant to view the CCTV recordings and to their surprise, one of the
CCTV recording channel namely Channel 6 that was operating normally a day
before had turned blank with an indicator of ‘Video Loss’ in which the plaintiff
and her husband suspected to contain the said incident.
I
[14] The respondent and her husband were suspicious of the Video Loss for
Channel 6 that might lead to the first defendant erasing the said CCTV Video
as one Nor, one of the teachers who works with the second defendant could not
give valid basis for the sudden video loss.
 Masniah bt Abidin & Anor v Safirah Jaan bt Jaafar
[2022] 11 MLJ (Amelati Parnell JC) 319

A [15] The plaintiff who felt uneasy with what had happened immediately
stopped sending the said child from attending the second defendant after
failing to receive proper explanation and assistance on the said incident that
had affected the said child and the plaintiff herself and her husband mentally,
physically and financially.
B
[16] Particulars of negligence by first and second defendants as pleaded are:
(a) failure to provide sufficient physical observation on the children under
their care that lead to the said incident occurring;
C
(b) failure to control and monitor the children’s acts and behaviour against
each other under their watch at all times;
(c) failure to provide sufficient evidence through CCTV recordings to
refute and confirm that the alleged said incident never occurred; and
D
(d) failure to ensure electrical monitoring devices such as CCTV to be in
good and workable form at all times to ensure the safety and wellbeing
of the children under their care be secured;
WHEREFORE the plaintiff claim against the defendants:
E
(a) general damages amounting to RM95,000 including damages for:
(i) pain and suffering of both child and parents; and
(ii) loss of dignity of daughter due to molestation.
F
(b) special damages including the following:
(i) transportation costs to police stations and hospitals RM1,500
(ii) payment to CCTV technician RM500
(iii) admission to anaesthetics ward for full physical check-up RM3,000
G
RM100,000
(c) statutory interest on general damages at the rate of 5%pa or at such rate
as the honourable court deems fit to award to be calculated from the date
of this writ to the date of judgment;
H
(d) interest of 5%pa on the judgment sum from the date of judgment to the
date of full payment;
(e) costs; and
I (f) such further or other relief as may be just that this court deems fit and
appropriate in the circumstances of this case.
(Refer to statement of claim, pp 1–11, record of appeal).
320 Malayan Law Journal [2022] 11 MLJ

THE DEFENDANTS’ CASE A

[17] The defendants denied the alleged molest incident as averred by the
plaintiff. Save as hereinbefore specifically admitted or pleaded thereto, the
defendants deny each and every allegation contained in the statement of claim
although the same were specifically set forth herein and traversed seriatim. B

(Refer to statement of defence, pp 11–16, record of appeal.)

THE ISSUES TRIED

C
[18] The issues tried before the magistrate court are as follows:
(a) whether the first and second defendants (appellants) owe duty of care
towards the plaintiff (respondent);
(b) if the answer to the above-mentioned is in the affirmative, whether the D
first and second defendants failed to exercise their duty of care towards
the plaintiff and the said child;
(c) if the answer to the above-mentioned is in the affirmative, whether the
first and second defendants are to be held liable for such negligence; and E
(d) if the answer to the above-mentioned is in the affirmative, what is the
amount of compensation should the plaintiff be awarded.

MEMORANDUM OF APPEAL
F
[19] In the memorandum of appeal dated on the 14 January 2021, the first
and second defendants appeal the whole of the decision of the learned
magistrate as follows:
(1) The learned magistrate erred in law and in fact when she decided that the G
alleged incident in respect of the respondent’s child ie ‘X’ (‘the said child’)
did happen when:
a) The CCTV recording at the second defendant’s premises on the exact
location of the alleged incident did not show the occurrence of that
alleged incident. H

b) The evidence of PW1, PW3 and PW5 on the alleged incident was
hearsay and against the physical evidence in this case, ie the CCTV
recording.
c) The learned magistrate’s finding that the alleged incident might have I
occurred in other location in the second Appellant’s premises was a
departure from the plaintiff ’s pleading and against the weight of
evidence.
 Masniah bt Abidin & Anor v Safirah Jaan bt Jaafar
[2022] 11 MLJ (Amelati Parnell JC) 321

A (2) The learned magistrate erred in law and in fact for allowing and accepting
the opinion given by PW2 as evidence of proof of breach of duty of care
when PW2 was only a witness of fact and not an expert witness.
(3) The learned magistrate erred in law and in fact for holding there was
negligence or the appellants had failed to exercise their duty of care
B towards the respondent and the said child by the appellants by relying on
evidence irrelevant to the facts in issue or mere opinions of PW1 and
PW2.
(4) The learned magistrate ought to have invoked adverse inference against
C the respondent for not calling the said child to testify as a witness during
the trial.
(5) The learned magistrate erred in law and in fact for holding that the
respondent had proved the Particulars of Negligence when:
a) the respondent did not bring evidence to prove those particulars,
D
b) the respondent’s evident departed from her pleading; and
c) the respondent has raised new issue which was not pleaded in her
pleadings.
(6) The learned magistrate erred in law and in fact when she failed to evaluate
E
the appellants’ evidence properly whereby the appellants’ evidence was not
challenged at all by the respondent during the trial. Hence, legally and
factually, the appellants’ evidence was deemed to be accepted by the
respondent and therefore, the appellants had proven their defence.

F (7) The learned magistrate erred in law and in fact for allowing the
respondent’s claim when the respondent had failed to prove her case on
the balance of probabilities.
(8) The learned magistrate erred in law and in fact for awarding general
damages, special damages and cost to the respondent when the respondent
G had failed to prove her case during the trial.

THE ANALYSIS

[20] It is trite that an appellate court will be slow to interfere with the
H findings of facts and judicial appreciation of the facts by the trial court to which
the law entrusts the primary task of evaluation of the evidence.

[21] The case of Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ
395; [1996] 4 CLJ 545, is instructive on this issue. Gopal Sri Ram JCA (as he
I then was) delivering the judgment of the Court of Appeal held (at p 550 (CLJ);
pp 398–399 (MLJ)):
It is trite law that this court will not readily interfere with the findings of fact arrived
at by the court of first instance to which the law entrusts the primary task of
evaluation of the evidence. But we are under a duty to intervene in a case where, as
322 Malayan Law Journal [2022] 11 MLJ

here, the trial court has so fundamentally misdirected itself, that one may safely say A
that no reasonable court which had properly directed itself and asked the correct
questions would have arrived at the same conclusion.

[22] In the present case, the basis of the plaintiff ’s claim was premised on the
alleged molest incident where on 16 March 2016, upon returning from the B
second defendant, her said child ‘X’ had informed her that a male child named
‘Y’ (a four-year-old boy) who also attended the second defendant, had sexually
molested the said child ‘X’ by opening her pants and touching her private parts.

[23] The said incident was said to have occurred at the second defendant’s C
premises a kindergarten/daycare known as Tadika Khalifah Perdana @ Little
Caliphs operating at Lot 129, Lorong 3D, Taman Putera Perdana, 88450
Telipok, Sabah.
D
[24] In determining the liability of the first and second defendants, it is
subjected to certain test laid down by several settled case law where three
essential ingredients must be fulfilled before the first and second defendants
could be held liable, which are as follows:
(a) the existence of duty of care which was owed by the first and second E
defendant to the plaintiff at the material time (duty of care);
(b) failure of the first and second defendants to attain that standard of care
prescribed by law and thereby committing a breach of such duty of care
(breach of duty); and F
(c) damage which was both causally connected with such breach and
recognised by law had been suffered by the minor (causation).

Duty of care
G
[25] For nature of operation like the second defendant providing day care
and kindergarten service for children five years and below, the first and second
defendants owes duty of care towards the said minor and other toddler or
children while they were under their care. This was duly considered by the
learned magistrate in her grounds where she stated: H
We refer back to our present case, the first defendant is the owner and principal of
the second defendant, a kindergarten/daycare of Tadika Khalifah Perdana @ Little
Caliphs. The victim was sent by the plaintiff to the said premise whereby the second
defendant provides daycare and kindergarden service for children five years and
below. It is therefore well established that the first and second defendant owns duty I
of care towards the victim and or the plaintiff. It was never disputed by any parties
that first and second defendant has no duty of care towards the plaintiff.

[26] In support, learned counsel for the plaintiff made reference to the case
 Masniah bt Abidin & Anor v Safirah Jaan bt Jaafar
[2022] 11 MLJ (Amelati Parnell JC) 323

A of Government of Malaysia & Ors v Jumat bin Mahmud & Anor [1977] 2 MLJ
103 where it was held that:
It is accepted that by reason of the special relationship of teacher and pupil, a school
teacher owes a duty to the pupil to take reasonable care, for the safety of the pupil.
The duty of care on the part of the teacher to the plaintiff must commensurate with
B his/her opportunity and ability to protect the pupil from dangers that were known
or that should be apprehended and the duty of care required is that which a careful
father with a very large family would take of his own children (see Ricketts v Erith
Borough Council [1943] 2 All ER 629 at p 631. It is not a duty of insurance against
harm but only a duty to take reasonable care for the safety of the pupil. The duty is
C aptly described by the learned Chief Justice of Victoria in the judgment of the full
vourt in Richards v State of Victoria [1969] VR139 at p 141 when he said:
The duty of care owed by (the teacher) required only that he should take such
measures as in all the circumstances were reasonable to prevent physical injury to
(the pupil). This duty not being one to insure against injury, but to take
D reasonable care to prevent it, required no more than the taking of reasonable
steps to protect the plaintiff against risks of injury which ex hypothesi (the
teacher) should reasonably have foreseen.

[27] As to the first element on duty of care, although the first and second
E
defendants owe duty of care towards the said minor, the law does not put a
strict liability on the first and second defendants as the owner and principal of
a kindergarten/daycare of Tadika Khalifah Perdana @ Little Caliphs bearing
the address of Lot 129, Lorong 3D, Taman Putera Perdana, 88450 Telipok
F Kota Kinabalu, Sabah.

[28] As decided in Government of Malaysia & Ors v Jumat bin Mahmud &
Anor that the duty of care of the first and second defendants to the minor must
commensurate with their opportunity and ability to protect the minor from
G dangers that were known or that should be apprehended. This duty not being
one to insure against injury, but to take reasonable care to prevent it.

[29] Further it was quoted by Suriyadi J in the case of Silvadurai a/l Kunnary
& Anor v Pengetua Sekolah Rendah Jenis Kebangsaan Cina Chung Hwa Asahan,
H Muar, Johor & Ors [1996] MLJU 331, as follows:
I further seek solace from the case of Zazlin Zahira Hj Kamarulzaman (an infant)
suing by his father and next friend, Hj Kamarulzaman b Mohd Ali lwn Louis Marie
Neube RT Ambrose a/l Ambrose & 2 Yg Ln [1994] (3) ANR 47 2518 at p 2519 under
held which reads:
I
1(a) Seorang guru bertanggungjawab menjaga keselamatan murid-murid di
bawah jagaannya. Kewajipan berhati-hati ini mesti mengambil kira peluang dan
kebolehan guru itu untuk melindungi murid-murid dari bahaya yang diketahui,
dan tahap kewajipan ini adalah sama dengan kewajipan seorang bapa yang
mempunyai anak ramai. Ia bukan kewajipan menjamin tidak akan berlaku
324 Malayan Law Journal [2022] 11 MLJ

kemalangan, tetapi sekadar kewajipan berhati-hati dengan munasabah untuk A

menjaga keselamatan murid-murid. Undang-undang tidak meletakkan
tanggungjawab yang keras (strict liability) ke atas guru.

Breach of duty
B
[30] Following the above authorities, the second element to be considered is
whether there is such breach of duty by the first and second defendants. Again
reference is made to the decision by the Federal Court in Government of
Malaysia & Ors v Jumat bin Mahmud & Anor which held as follows:
C
In considering whether or not the appellants were in breach of their duty of care to
the respondent it was necessary for the trial judge to consider first whether the risks
of injury to the plaintiff were reasonably foreseeable and secondly assuming it was,
whether the appellants took reasonable steps to protect the respondent against those risks.
(Emphasis added.)
D

[31] Having perused the grounds of judgment of the learned magistrate in

the present case, there was no clear finding of whether the injury ie the alleged
molest incident onto the said child ‘X’ of the plaintiff had been proven and that
the injury was reasonably foreseeable and secondly assuming it was, whether E
the first and second defendants took reasonable steps to protect the said child
‘X’ against those risks.

[32] Hence, this issue must be first determined before the first and second
defendants are said to have breach the duty of care. F

[33] In the present case, the first and second defendants had urged the court
not to believe the testimonies of PW1, PW3 and PW5 based on the following
reasons: G
(a) their evidence are hearsay because they did not see the said incident and
were merely told by the child about it; and
(b) the child’s story about the said incident (as told to the plaintiff, PW3 and
PW5) is contradicted by the physical evidence in this case, ie the CCTV H
recording of Channels 4 and 5. It is undisputed fact that CCTV
Channels 4 and 5 record the TV viewing area in which the said incident
was pleaded to have occurred. The plaintiff ’s counsel agreed that after
viewing the video recording of those two CCTV channels for the day of
the said incident, ie 16 March 2016, both channels did not record the I
said incident. This shows that the said incident did not occur.
Accordingly, it proves that the child’s story about the said incident is
false. On the same basis, the evidence of the plaintiff, PW3 and PW5 is
against the physical evidence too.
 Masniah bt Abidin & Anor v Safirah Jaan bt Jaafar
[2022] 11 MLJ (Amelati Parnell JC) 325

A [34] The said child ‘X’ was not called to testify. The incident as to the alleged
molest come from plaintiff (PW1) where she testified that:
PW1 Witness Statement
Q8: What is the content of the police report dated 18.03.2016?
B A: I made a report that my daughter complained to me on the 16 march 2017 that
her friend. On the 17th March 2017 when we went to the kindergarten with the
intention to view the CCTV recording the owner Puan Masniah gave excuses that
the cctv wireless mouse was broken by the kids and asked us to come back next day
or the day after. We (me, my husband and Puan Masniah) confirmed that on the
C 17th March 2016, all eight (8) cctv chanel recordings are function well. Only on the
18th March 2016 did we realize that there is a video loss and when we asked why
they couldn’t provide us with satisfactory answer.
Q9: How did you come to know on this incident?
A: My daughter informed me verbally that her friend, child ‘Y’ took off her pants
D and touched her private part.
Examination-in-Chief of PW1
PC: Do you believe what your daughter told you and if yes why?
PW1: Yes I believe what she told me because she is only 4 years old and such things
E never been exposed to her never happen in her life before. A 4 years old child cannot
create something that she never being exposed/know before.
Re-Examination of PW1
PC: you were also asked:

F DC: I put it to you the alleged incident about your daughter did not happen,
agree?
PW1: disagree
Explain why you disagree?
G PW1: a 4 years old kid who never been exposed to such sexual act called molesting
she cannot create something beyod her knowledge and she kept repeating the same
thing with the same name child ‘Y’. Her statement is consistent and coherent. There
is no reason for a 4 years old kid to tell a lies for no reason.
PC: you were asked:
H Why you disagree?
PW1: My answer will be the same as above.

[35] The above quoted testimonies of PW1 are indeed hearsay evidence. In
I this regard I shall refer to the view expressed by Abdul Kadir Sulaiman J (later
FCJ) (as he then was) in Tempil Perkakas Sdn Bhd v Foo Sex Hong (t/a Agrodrive
Engineering) [1996] 5 MLJ 542 at p 547; [1996] 1 LNS 99 as follows:
… It is clear law that if anything is said or tendered through a witness which is not
within the actual knowledge of the witness, anything said or tendered would remain
326 Malayan Law Journal [2022] 11 MLJ

inadmissible notwithstanding the omission to object by the opposing party. The A

opposing party cannot be taken to have admitted to what had been said and
tendered.

[36] This is not a case where PW1 in the present case had the personal
knowledge of the alleged molest incident. The Court of Appeal had in Hassan B
bin Hj Ali Basari v Public Prosecutor [2019] 1 MLJ 390; [2018] 4 CLJ 561;
[2018] 1 LNS 132 held as follows:
[44] So, ‘hearsay evidence’ and ‘information’ are two different kettles of fish
altogether. The information that PW1 gave to the appellant was not hearsay C
evidence for the simple reason that it was within his own personal knowledge. It was
not something that he came to know of from a third party not called as a witness. It
was what he saw with his own eyes and heard with his own ears and not what a third
party told him. Learned counsel was therefore misconceived in contending that the
information that PW1 gave to the appellant was hearsay evidence.
D

[37] On the treatment and value of hearsay evidence, the Federal Court in
Leong Hong Khie v Public Prosecutor [1986] 2 MLJ 206; [1984] 1 LNS 172;
[1984] 1 MLRA 599 observed, inter alia, as follows:
The general rule is that hearsay evidence is not admissible as proof of a fact which E
has been stated by a third person. This rule has been long established as a
fundamental principle of the law of evidence. To quote Lord Normand in Teper v R
[1952] AC 480, p 486:
The rule against the admission of hearsay evidence is fundamental. It is not the
F
best evidence, and it is not delivered on oath. The truthfulness and accuracy of
the person whose words are spoken by another witness cannot be tested by
cross-examination and the light which his demeanour would throw on his
testimony is lost.
In our opinion, another reason is the danger that hearsay evidence may be G
concocted, fabricated and tailored to suit the witness’s testimony.
Notwithstanding this general rule certain exceptions have been recognised upon
the ground of necessity or convenience. In Malaysia, these exceptions are set out
in s 32 of the Evidence Act 1950.
H
[38] In assessing the evidence of PW1, I have no hesitation to hold the
considered view that the evidence of PW1 in this regard is nothing more than
hearsay as it sought to prove, by that evidence, the truth of the matter. In the
absence of other plausible affirmative evidence, I am constrained to find that
the evidence of PW1 in this respect as inadmissible. I

[39] The plaintiff had called PW3 and PW5 to justify why the said child ‘X’
was not called to testify. PW3 is Dr Razifah bt Abdul Rahman working as
Consultant Psychiatrist and Head Department of Psychiatry and Mental
 Masniah bt Abidin & Anor v Safirah Jaan bt Jaafar
[2022] 11 MLJ (Amelati Parnell JC) 327

A Health at Queen Elizabeth Hospital and has a working experience of 17 years.

PW5 is Clarice bt Andrew, Psychologist Officer at Hospital Wanita dan
Kanak-Kanak Sabah.

[40] In her judgment, the learned magistrate referred to the testimonies of

B PW5 who testified that the child is not advisable psychologically and medically
to bring a young child of tender age to court as a witness in this case as she
already passed the incident therapeutically. This resulted in the child, was not
called to give evidence in court. The learned magistrate further said that ‘It was
also submitted by the doctors that attended the trial, PW5 that the plaintiff ’s
C
child, upon numerous treatments and evaluation, found to be telling the truth,
as per the witness’s evaluation report’.

[41] Further in her grounds, the learned magistrate said:

D This court agrees that a four year old child will never tell lies not even something she
had not learn or exposed unless she had the experienced on that. It has to be noted
as well that the child was only being sent at the second defendant for about 1 month
prior to the said incident therefore it is impossible for the child to make up story.
…
E
Based on the report of PW5 at pages 20 it is stated as follows: ‘Reason for the referral
was that she still having nightmares of the incidence of being molested …’
At the time of the referral she was only three years and 11 months and she is the
eldest of the two siblings and at the time of the trial commenced, she would have
F been five years old.
The defendant stated that the child is competent enough to testify in court and
relying on s 118 of the Evidence Act 1950. This court is unable to agree with the
defendant. The child might be competent enough to testify in court but as a parent
do you wish to put your five years old child to testify in court? This court is very
G much aware on the requirement of the law requiring the child to be a witness, but
in some circumstances we need to be flexible in applying the law based on the
circumstances arises. The said child was referred to psychiatry hospital after the
alleged incident and is recovering and we do not want to put back the child to that
situation and refreshes her memory. We should follow the law but it needs to be
H applying with flexibility based on the circumstances. We do not need to have a four
years old child to have gone through the process where we as an adult are also having
difficulties if we have been put in such a manner. We can always refer back to the
evidence given by PW1 and PW2 on the child condition after the incident happen.

I [42] With respect, the learned magistrate had misdirected herself on the
point of non-calling of the said child ‘X’. No provision of law or case authority
referred to support her view of applying flexibility based on the circumstances.
The evidence put forth by PW1 and PW2 for non-calling of the said child ‘X’
does not fall under exceptions set out in s 32 of the Evidence Act 1950.
328 Malayan Law Journal [2022] 11 MLJ

[43] I am with the learned counsel for the defendants that the evidence of A
PW3 and PW5 could not be used in determining whether the alleged molest
incident had occurred or not because they were merely giving opinions and,
thus, their opinions fall under s 45 of the Evidence Act 1950. Pursuant to that
section, opinions of experts are relevant facts only ‘when the court has to form
an opinion upon a point of foreign law or of science or art, or as to identity or B
genuineness of handwriting or finger impressions’.

[44] In this case, the learned magistrate did not need to form an opinion
upon any of the matters mentioned in s 45 of the Evidence Act. The alleged
molest incident was a question of fact which determination required evidence C
of fact; not evidence of opinions.

[45] For the case of Chan Sau Chuan v Choi Kong Chaw & Yap Yun
Chan [1990] MLJU 9; [1991] 2 CLJ 394 referred to by the plaintiff ’s counsel, D
the fact of the case can be easily distinguished, in that it was a personal injury
claim due to road traffic accident. The plaintiff himself was said to be medically
unfit to testify as he had suffered severe brain injury as a result of the accident. The
investigation officer, PW3 was held to be competent being investigating officer
in traffic accident to give his views who went to the scene of the accident where E
he firstly studied the scene. He saw two cars at the scene and some scratch
marks on the right half of the road as one faces Kuala Lumpur. Thereafter he
drew a sketch plan of the scene of the accident and also made a key as to
explanations of the various alphabetical markings and the relevant
measurements of the distance between the said markings. The sketch plan and
F
the key were tendered and marked as exhs P3 and P3K respectively.

[46] In the present case, PW5 did not see the alleged molest incident but was
told about it by PW1 which is obviously hearsay, unlike PW3 in Chan Sau
Chuan’s case where he went to the scene of accident, saw the vehicle involved at G
the scene and drew a sketch plan and the marking.

[47] At QA 9 of her witness statement, PW5 testified that ‘Upon meeting

with me at three occasions, child ‘X’ did not have any psychiatric diagnosis’.
Nowhere in PW5 testimony that the said child ‘X’ is medically unfit to testify. H

[48] Although PW5 said that it is unadvisable to bring the child to court
because the child had already passed the said incident therapeutically, it is
established principle of law that it is the court that will decide whether a child
is competent to testify. This principle is stated very clearly in s 118 of the I
Evidence Act 1950:
All persons shall be competent to testify unless the court considers that they are
prevented from understanding the questions put to them or from giving rational
answers to those questions by tender years, extreme old age, disease, whether of body
 Masniah bt Abidin & Anor v Safirah Jaan bt Jaafar
[2022] 11 MLJ (Amelati Parnell JC) 329

A or mind, or any other cause of the same kind.

[49] Learned counsel also relied on ss 101 and 102 of the Evidence Act 1950.
It was submitted that the plaintiff has failed to prove the negligence because the
plaintiff did not prove the said incident which is the crux of the plaintiff ’s
B
action. The first and second defendants further submitted that the plaintiff did
not bring any evidence to prove this pleaded fact especially when the said child
is not called to give evidence in court.

C [50] This principle was decided by the Court of Appeal in Selvaduray

v Chinniah [1939] MLJ 253 which held that s 102 of the Evidence Act 1950
provides that the burden of proof rests upon the party who would fail if no
evidence at all were on either side:
The burden of proof under s 102 of the Evidence Enactment is upon the person
D who would fail if no evidence at all were given on either side, and accordingly the
plaintiff must establish his case. If he fails to do so, it will not avail him to turn
around and say that the defendant has not established his. The defendant can say ‘It
is wholly immaterial whether I prove my case or not. You have not proved yours’.

E [51] The alleged molest incident was a question of fact which determination
required evidence of fact. Evidence of Child Witness Act 2007 (Act 676)
provides the manner in which a child could safely and comfortably give
evidence in court.

F [52] At this juncture it is appropriate to set out how the evidence of a child
witness may be given pursuant to the Evidence of child Witness Act 2007 (Act
676):
3(1) A child witness may, at any stage of a trial, give evidence in any one or a
combination of the following manner:
G
(a) by having a screen between him and the accused or a child charged with
any offence;
(b) by live link; or
(c) by video recording.
H
(2) For the purposes of this section, any evidence given under subsection (1) shall be
deemed to be evidence given in an open court.

[53] The burden of proof as to the alleged molest incident, therefore lay on
I plaintiff. Thus, it is incumbent upon the plaintiff to produce the said child ‘X’
as witness to prove the allegation.

[54] The decision of the Court of Appeal in Juahir bin Sadikon v Perbadanan
Kemajuan Ekonomi Negeri Johor [1996] 3 MLJ 627 at p 635, line C–E is
330 Malayan Law Journal [2022] 11 MLJ

relevant on this point: A

He who alleges must prove such allegation and the onus is on the appellant to do so
(see s 103 of the Act). Thus, it is incumbent upon the appellant to produce Tan Sri
Basir as his witness to prove the allegation. The fact that the appellant was unable to
secure the attendance of Tan Sri Basir as a witness does not shift the burden to the
respondent to produce the witness and testify as to what he had uttered, as firstly, B
the respondent never raised such an allegation and, secondly, has denied even
making one. For this very reason, the adverse inference under s 114(g) of the Act
relied upon by the appellant cannot be accepted as establishing that if the witness
had been produced, his evidence would work against the respondent. There is no
obligation in law for the respondent to produce the witness as that obligation rests C
with the appellant, the party who alleges, and the fact that the appellant was unable
to do so is fatal to his case. For this very reason too, the adverse inference under
s 114(g) is invoked against the appellant.

[55] Therefore, the failure to call the said child ‘X’ in the present case to D
testify, must be held against the plaintiff, in that an adverse inference under
s 114(g) of the Evidence Act 1950 ought to be invoked.

Whether the risks of injury were reasonably foreseeable?

E
[56] PW2 who is the father of the said child ‘X’, testify that:
PW2: Pada pendapat saya sekiranya terdapat pengawasan dari orang dewasa
sepanjang masa di tadika tersebut insiden yang berlaku terhadap anak saya tidak
sepatutnya berlaku di sana menunjukkan pihak tadika gagal menyediakan
F
pengawasan yang secukupnya samada dari segi kehadiran orang dewasa atau cikgu
atau rakaman CCTV sebagai bukti bahawa tidak ada kecuaian yang berlaku dan
selalunya bila saya pergi ke tadika tersebut saya dapati pintu luar tadika tersebut
selalunya tidak berkunci dan boleh dimasuki oleh sesiapa pun. Terdapat
kanak-kanak yang bermain di luar premis tanpa pengawasan orang dewasa.
G
(see p 15 of supplementary record of appeal No 2.)
is only giving opinion as witness of fact and not an expert witness.

[57] In the absence of proof of the alleged injury to the said child ‘X’, there
is no risk of such injury which were reasonably foreseeable. H

[58] Further, the first and second defendants’ main evidence via witness
statement of the first defendant (DW1) states that:
Q7: The plaintiff alleged that (child ‘Y’) had sexually molested (child ‘X’) by I
opening her pants and touching her private parts inside the second defendant’s
premises on 16th March 2016. Is that true?
A7: No. It is not true.
Q8: Why is it not true?
 Masniah bt Abidin & Anor v Safirah Jaan bt Jaafar
[2022] 11 MLJ (Amelati Parnell JC) 331

A A8: Because of two reasons. One is because the teachers did not see the incident
happen. If other students saw it, they would have told the teachers. Second is
because based on my view of the CCTV recordings inside the second defendant’s
premise of the day 16th March 2016, I did not see that incident happen.
Q9: How many CCTV cameras were installed at the second defendant’s premises?
B
A9: 8 cameras. So the CCTV recordings have 8 channels.
Q10: Do you know where the alleged incident was alleged to have happened?
A10: Based on the information received from the plaintiff on 17th March 2016, it
was in front of the TV viewing area which is located of the second defendant’s
C premise.
Q11: Which CCTV channels recorded the area in front of the TV viewing area on
16th March 2016?
A11: Since the incident was alleged to have occurred in front of the TV viewing area
which is located on the lower premise of the second defendant’s premises, the
D relevant CCTV recordings would be channel no 4 and channel no 5.

(See pp 99–116 (cross-examination of DW1) of supplementary record of

appeal No 2.)

E [59] As submitted by the learned counsel for first and second defendants, the
plaintiff did not cross-examine DW1 on the main evidence quoted above.
Similarly, the CCTV recordings of Channels 4 and 5 which did not record the
alleged incident, was not challenged at all by the plaintiff during
cross-examination as quoted (see p 120 of supplementary record of appeal
F no 2):
PC: I have view the CCTV recording and I confirmed that channel 4 and 5 did not
record any such incident therefore there is no necessity to tender it as evidence in
court.
G DC: no objection and I confirm. Defendant closed its case and no more witness to
be called.

[60] As the plaintiff had not challenged or rebutted the main evidence and
also the failure to cross-examine on vital issues on the facts of the case and
H evidence from the DW1, it must be deemed to be accepted as the truth in
entirety. Hence, the first and second defendants had proven their defence that
the alleged molest incident did not occur.

[61] The law on the above principle is trite. The Federal Court held in Ng
I Siew Lan v John Lee Tsun Vui & Anor [2017] 2 MLJ 167:
[25] The effect of failure to challenge the plaintiff ’s evidence on this point is to
render the first defendant’s version wholly untenable. This is settled law and the
following pronouncement by Lord Halsbury in the House of Lords case of Browne
v Dunn (1894) 6 R 67 is relevant:
332 Malayan Law Journal [2022] 11 MLJ

To my mind nothing would be more absolutely unjust than not to cross-examine A

witnesses upon evidence which they have given, so as to give them notice, and to
give them an opportunity of explanation, and an opportunity very often to
defend their own character, and, not having given them such an opportunity, to
ask the jury afterwards to disbelieve what they have said, although not one
question has been directed either to their credit or to the accuracy of the facts B
they have deposed to.
[26] The same point was lucidly explained by Mukharji J in AEG Carapiet
v Derderian AIR 1961 Cal 359 in the following terms:
The law is clear on the subject. Wherever the opponent has declined to avail
himself of the opportunity to put his essential and material case in C
cross-examination, it must follow that the testimony given could not be disputed
at all. It is wrong to think that this is merely a technical rule of evidence. It is a
rule of essential justice. It serves to prevent surprises at trial and miscarriage of
justice, because it gives notice to the other side of the actual case that is going to
be made when the turn of the party on whose behalf the cross-examination is D
made comes to give evidence by producing witnesses. It has been stated on high
authority of the House of Lords that this much counsel is bound to do when
cross-examining that he must put to each of his opponent’s witnesses in turn, so
much of his own case as concerns that particular witness or which that witness
had any share. If he asked no question with regard to this, then he must be taken
to accept the plaintiff ’s account in its entirety. Such failure leads to miscarriage of E
justice, first by springing surprise upon the party when he has finished the
evidence of his witnesses and when he has no further chance to meet the new case
made which was never put and secondly, because such subsequent testimony has
no chance of being tested and corroborated.
F
[62] Perusing the line of cross-examination on DW1, the first and second
defendants had indeed provided the service of duty of care that is expected to
the pupil ie take reasonable care, for the safety of the pupil:
PC: dengan membayar amaun yang kamu katakan tadi apakah yang kamu dan G
defendan kedua berikan atau janjikan kepada ibubapa yang menghantar anak-anak
ke sana?
DW1: pendidikan, makanan, mandi tidur dan keselamatan.
PC: setuju jika saya katakan berdasarkan jawapan kamu, kamu dan defendan kedua
menawarkan penjagaan sepenuhnya ke atas kanak-kanak yang dihantar dan H
kanak-kanak tersebut juga akan dijaga sepanjang masa oleh penjaga atas dasar umur
mereka yang masih kecil setuju.
DW1: Setuju.

Error when the alleged molest incident had occurred based on unpleaded fact and I
against PW1’s own evidence

[63] Further, the learned magistrate has misdirected herself when she made a
finding that that there was possibility that the said incident occurred at other
 Masniah bt Abidin & Anor v Safirah Jaan bt Jaafar
[2022] 11 MLJ (Amelati Parnell JC) 333

A places:
There is possibility that the said incident might have occurred at other location in
the premises. As stated by PW2, this court agree that the alleged incident might
have been recorded at another channel apart from channel 4 and 5 which has been
given to the plaintiff.
B
(See p 19 of supplementary record of appeal No 2.)

[64] The plaintiff ’s pleaded fact was that the alleged molest incident
occurred in front of the TV viewing area (see para 7 of the statement of claim).
C PW1 too testified that her child mentioned the alleged molest incident
occurred in front of the TV. Thus, the respondent’s pleaded case and evidence
was the alleged molest incident happened in front of the TV area:
DC: Di bahagian mana ia berlaku?
D PW2: Di dalam bilik yang ada TV.
DC: Bilik TV itu di bahagian bawah setuju?
PW2: Setuju.

E [65] I am with the first and second defendants that making a finding of fact
based on unpleaded fact and contrary to evidence is fatal. The then Supreme
Court held in Yew Wan Leong v Lai Kok Chye [1990] 2 MLJ 152 ; [1990] 1 CLJ
1113; [1990] 1 CLJ Rep 330 that a decision based on an issue which was not
raised by the parties in their pleadings is liable to be set aside.
F
[66] The Federal Court in Saiman bin Umar v Lembaga Pertubuhan Peladang
and another appeal [2015] 6 MLJ 492; [2015] 9 CLJ 153 stressed the
importance of the trial court not to decide issue which was not pleaded by
parties:
G
[40] In our view, there is merit in the submissions of learned counsel for the
defendant. It is a well-settled legal principle that the court should not decide on an
issue that was not pleaded by the parties as had been decided in Yew Wan Leong v Lai
Kok Chye where the Supreme Court cited Janagi v Ong Boon Kiat [1971] 2 MLJ
196; [1971] 1 LNS 42 and agreed with the following passage of Sharma J which
H
stated:
The court is not entitled to decide a suit on a matter on which no issue has been
raised by the parties, it is not the duty of the court to make out a case for one of
the parties when the party concerned does not raise or wish to raise the point. In
I disposing of a suit or matter involving a disputed question of fact it is not proper
for the court to displace the case made by a party in its pleadings and give effect
to an entirely new case which the party had not made out in its own pleadings.
The trial of a suit should be confined to the pleas on which the parties are at
variance.
334 Malayan Law Journal [2022] 11 MLJ

[41] We should remind ourselves that parties to an action are bound by their own A
pleadings. It is therefore necessary to make the point that the court is also bound by
the pleadings in as much as the parties themselves. The most important purpose of
pleadings is to plead reasonable cause of action, define the issues of fact and
questions of law to be determined by the court. It is a valid argument to make that
the court is constrained to decide an action on which no issue has been raised by the B
parties in their respective pleadings (Ambank (M) Bhd v Luqman Kamil Muhammed
Don [2012] 3 MLJ 1; [2012] 3 CLJ 551; [2012] 3 MLRA 459 and Victory Avenue
Mfg (M) Sdn Bhd v Matsushita Electronic Devices (M) Sdn Bhd [2009] 5 MLJ 243;
[2009] 1 LNS 296).

C
[67] As pointed out by the learned counsel for first and second defendant,
the learned magistrate’s finding of fact of the possibility that the said incident
occurred at other location in the second defendant’s premises is against the
weight of evidence. The CCTV recordings of Channels 4 and 5 at the second
defendant’s premises on the exact location of the alleged incident (in front of
D
the TV area) on the day of the alleged molest incident did not show the
occurrence of the said incident. This was admitted by the plaintiff ’s counsel
who had watched the said CCTV recordings. According to the plaintiff ’s
counsel, since both channels did not record the said incident, there was no
necessity to tender the CCTV recordings as evidence in court (see p 120, lines
E
8–10 of supplementary record of appeal No 2). This admission indicates that
the alleged molest incident did not occur. The learned magistrate ought to have
considered this admission because it was based on physical evidence.

CONCLUSION
F
[68] Having considered all facts in this matter as highlighted above, on the
available evidence before it, I am persuaded that there are merits in this appeal
warranting intervention.
G
[69] The order of the learned magistrate is set aside. The appeal of the first
and second defendants is allowed with costs of RM5,000 subject to payment of
allocator fee.

Appeal allowed and magistrate’s decision set aside. H

Reported by Ashok Kumar